WSP12258 - Laserfiche WebLink

Home Browse Search

WESTERN TATE ATE O('l.1i~'7Q dtv - . July 8, 1994 Issue No. 1051 orA sc A$C F I L E TIlE WEEKLY NEWSLETI'ER OF TIlE WESTERN STATF$ WATER COUNCIL Creekview Plaza, Suite A-201/942 East 7145 So./ Midvale, Utah 84047 / (801) 561-5300 / FAX (801) 255-%42 Chairman - Dave Kennedy; Executive Director - Craig Bell; Editor - Ricky S. Torrey; Typist - Carrie Curvin WATER RESOURCES Colorado RiverJWater Banking and Marketing . On May 6, the Department of Interior released draft regulations for administering entitlements to Colorado . River water in the Lower Basin. The regulations will involve three States and affect some 240 water user organizations. Federal Register publication was expected in June, but will likely be delayed until August, pending completion of an in-house review (WSW #1045). The draft rule is intended to facilitate voluntary water transfers and provide a framework to eliminate unauthorized and wasteful uses. It includes criteria to determine whether wells adjacent to the Colorado River are subject to regulation by the Secretary of Interior. It is estimated that more than 97% of the annual water supply replenishing the alluvial aquifer comes from the Colorado River. . The draft regulations give water users a due process right to appeal any adverse finding or determination with respect to prohibited uses. Further, "The draft rule is intended to have pre-emptive effect with respect to any state or 10c,!1 jurisdictions in the determination of: (1) whether a water user who withdraws water from wells subject to the rule is an unauthorized user of Colorado user water; (2) the determination and consequences of non-use, non- beneficial use, unreasonable use, unauthorized use, or unreported use of entitlements; and (3) minimum conservation requirements." The draft rules promote more efficient water use by authorizing voluntary transfers, under stipulated conditions, as well as banking and marketing of banked water. The draft rules recognize extraordinary conservation measures. or land. fallowing as a beneficial use. Entitlement holders would be able to store conserved water in Lake Mead, charge the conserved water against their annual entitlement and the apportionment of the state where the conservation took place, and then treat the conserved and banked water as non-Colorado River water that could be marketed or used to repay any unintentional excess use that may occur. Such water saved through verifiable conservation measures generally would not be subject to forfeiture or loss due to non-use. However, banked water would be deemed "top water" in Lake Mead, subject to release for flood control purposes before Colorado River water. Citing a number of legal authorities, the draft rule reflects the Department's preliminary conclusion that it is appropriate, without additional authority from Congress, to' "include Indian reserved water rights in the direct leasing and banking-marketing provisions of the proposed regulations...," It states, "...Indian reserved rights are transferable property rights which have the potential to generate not only financial benems, but also to create jobs, increase services, and stimulate reservation economic growth." The draft rule further states that off-reservation marketing of Indian reserved rights is supported by the Supreme Court's determination that, while Indian water rights are set by the "practically irrigable acreage," test, "reference to a quantity of water necessary to supply the consumptive use required for irrigation...shall not constitute a restriction on the usage of [water rights] to irrigation or other agricultural application." Arizona v. California, 429 U.S. 419, 422 (1979). The draft rule continues, "The [C]ourt's explicit recognition that the tribes are free to change the use of their water rights to any purpose necessary to accomplish the